Supreme Court refuses General Solicitor's withdrawal of appeal pending resolution of wardship jurisdiction challenges.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

54/2011

O’Donnell J.,

MacMenamin J.,

O’Malley J.

Between/

Valerie Coleman and Fintan Coleman as Legal Personal

Representatives of Peter Clohessy Deceased

Plaintiffs

AND

Patrick Clohessy

Defendant

AND

Ann Clohessy

Notice Party

Ruling of the Court delivered on the 9th of October 2018

1 These proceedings which are now of considerable age, have been listed for submissions, as to whether the issue of the validity of

the wardship of the notice party (Ann Clohessy) is in contention before any court. The reason this issue arises is because Ann

Clohessy was taken into wardship by order of the President of the High Court dated the 19th of August 2016, and the General

Solicitor for Minors and Wards of Court, Ms Patricia Hickey, was appointed as committee of her estate and person. Following a

direction of the President of the High Court, the General Solicitor has indicated an intention to withdraw the appeal herein on terms

with an order as to costs. This is of course objected to by the defendant Patrick Clohessy. Since the withdrawal of the appeal would

bring this appeal to an end, it is important that there is no possibility that a future decision might leave room for doubt about the

power of the General Solicitor to take this step.

2 The background to this appeal before the Supreme Court (and consequently this issue) is extremely complicated. The present

appeal (No. 54/2011) is not an appeal from any substantive hearing, but rather from a decision of the High Court (Hedigan J.) sitting

in relation to a Circuit Court appeal then extant before the High Court. That order was in turn an order setting aside an order of the

Master of the High Court whereby he had substituted the notice party Ann Clohessy, for the plaintiff herein Peter Clohessy deceased

(her husband from whom she was separated) and permitted a purported settlement, entered into between the said Ann Clohessy and

Patrick Clohessy to be filed on the 1st of July 2009.

3 The Circuit Court proceedings (on appeal to the High Court) which were the subject of these applications, were themselves not the

first piece of litigation involving the parties hereto. Unfortunately there has been a history of bitter and extensive litigation. Initially

the proceedings were commenced between Peter Clohessy and his son Patrick Clohessy, the defendant herein, in respect of certain

lands in County Cork. Those proceedings were heard and determined in the Circuit Court and appealed to the High Court, where after

a very full hearing Mr Justice Budd held that Peter Clohessy was entitled to the legal and beneficial interest in the lands and premises,

the subject matter of the proceedings. For the sake of completeness, and to give some sense of the unfortunate lengths to which

this family dispute has gone, it is perhaps desirable to set out the terms of that order in full with interpolations to identify the parties

as appropriate:

“It is ordered that:

(i) The plaintiff/respondent [Peter Clohessy] is entitled to the entire legal and beneficial interest in the lands and premises

the subject matter of these proceedings being the property shaded in pink on the map in the second schedule hereto

together with all buildings and structures erected thereon.

(ii) The defendant/appellant [Patrick Clohessy] to effect an assurance to the sole name of the plaintiff/respondent [Peter

Clohessy] of such legal title if any as the defendant/appellant [Patrick Clohessy] may have in the said lands within 30

days of the date hereof.

(iii) In the event that the defendant/appellant [Patrick Clohessy] fails to comply with the provisions of paragraph 2 hereof

the Court doth empower the County Registrar of the County of Cork her agents and servants pursuant to s.33 of the

Trustee Act 1993 to effect an assurance of the said lands to the plaintiff/respondent [Peter Clohessy] on behalf of the

defendant/appellant [Patrick Clohessy].

(iv) The defendant/appellant [Patrick Clohessy] his servants or agents do deliver up to the solicitor for the

plaintiff/respondent [Peter Clohessy] all documents of title to the said lands within 30 days of the date hereon.

(v) The defendant/appellant [Patrick Clohessy] his servants or agents are hereby restrained from threatening to assault

or otherwise attempting to intimidate the plaintiff/respondent [Peter Clohessy].

(vi) The plaintiff/respondent [Peter Clohessy] to recover the sum of €6,000 from the defendant/appellant [Patrick

Clohessy] by way of damages for assault.

(vii) Any further applications other than speaking to the minutes of this order and all issues with regard to the

enforcement of the orders herein be and are hereby remitted to the Circuit Court.”

The Court also made an order that the plaintiff recover costs against the defendant and ordered that the defendant’s counterclaim be

struck out.

4 It appears however that the defendant did not deliver possession of the said lands, and it was necessary to commence separate

Circuit Court proceedings to recover possession of the lands. Those are the proceedings in which the application was brought to the

Master, which was the subject of appeal to Judge Hedigan and in due course the appeal which is before this Court. On the 13th of

May 2009, Judge O’Donnabháin in the County of Cork made an order “that the plaintiff [Peter Clohessy] recover possession from the

defendant [Patrick Clohessy] of the premises comprising of premises and other hereditaments known as part of the town lands of

Ballincurrig and Corbally North of the Parish of Temple Bowden and Barony of Barrymore in County of Cork” and costs. Subsequently on

the 31st of July 2009, the defendant Patrick Clohessy was ordered to be committed to prison for a period of seven days or until such

time as he was deemed by the Court to have purged his contempt for failure to obey the order of the Court made on the 13th of May

2009. It should be said, that it appears from the orders that at all relevant times the parties were legally represented.

5 These orders in turn were appealed to the High Court and on the 18th of January 2010, Birmingham J. having heard counsel for both

parties dismissed the appeal in respect of the order for possession and extended time for the appeal against the committal order and

directed that the matter be fixed for hearing on the 25th of January 2010. On that occasion, the Court refused the application of

counsel for the defendant/appellant [Patrick Clohessy] for a direction that oral evidence be heard by video link, and dismissed the

appeal against the order for committal. It is very disappointing that a dispute between members of the same family should have led to

these protracted proceedings, but the order of Mr Justice Birmingham in the High Court ought to have brought an end to these

distressing proceedings. However, on the day the Court delivered its judgment on the appeal in relation to the order of possession

(Tuesday the 26th of January 2010) the plaintiff and respondent to the appeal, Peter Clohessy died. This event gave rise to the

application which was the subject matter of the order of the Master, and subsequently the decision of Hedigan J. in the High Court,

and the appeal presently before this Court. An order of the Master of the 2nd of February 2010, has been produced which purports to

show that Ann Clohessy, styled as the “personal representative of the deceased plaintiff” made an application ex parte to amend the

title of the proceedings to “Ann Clohessy as personal representative for Peter Clohessy deceased”. However although the order is

stated to be ex parte, it also records the identity of the solicitor for the defendant as Brendan J. Looney. It is not clear whether he

appeared on that occasion. Subsequently on the 1st of July 2010, the new plaintiff made an ex parte application in the presence of

the defendant, that is Patrick Clohessy himself, informing the Master of the High Court that the proceedings had been settled and the

certificate of consent which was received and filed in the court and the proceedings accordingly stayed. It will be recalled however

that by this stage the proceedings had already been concluded by final order of Birmingham J. of the 26th of January 2010.

6 In her affidavit, sworn for the purposes of this hearing, the General Solicitor has exhibited a will of Peter Clohessy deceased of the

9th of January 2008. In it he appointed his daughter Valerie Coleman and her husband Fintan Coleman as executors of his will. Under

the will he bequeathed his entire property to his daughter Valerie Coleman, subject only to a small monetary bequest of €1,000 each

to his daughter Veronica Clohessy from whom he was estranged, and to his “estranged wife Ann Clohessy” from whom he had been

separated and living apart since 1990. It is unclear therefore on what basis the application was made before the Master on the 2nd of

February 2010 identifying Ann Clohessy as the personal representative of Peter Clohessy deceased. That however is only one of the

many issues arising in this protracted dispute.

7 It appears that the will has been the subject of testamentary proceedings, in that proceedings were commenced by the executors

named in the will to have the will proved in solemn form. Those proceedings have not been resolved. This Court was informed that

they were struck out on two occasions, but there are still extant Circuit Court proceedings seeking to prove the will in solemn form.

8 The order of the Master was appealed to the High Court, and the application dealt with by Hedigan J. on the 17th of January 2011.

The Court has been provided with an order recording that counsel on behalf of the nominated executrix Valerie Coleman appeared,

and that Ms Veronica Clohessy appeared and was permitted to make representation on behalf of her mother Ann Clohessy. The High

Court made orders that the Master’s orders of the 2nd of February 2010 and the 2nd of July 2010 be set aside and that all further

proceedings be carried on and prosecuted between Valerie Coleman and Fintan Coleman as legal personal representatives of Peter

Clohessy deceased and Patrick Clohessy. It was further ordered that the costs of the motion be allowed out of the estate of Peter

Clohessy when taxed and ascertained. It appears that Ann Clohessy appealed against this order which is the appeal which came

before the Supreme Court. A motion was brought on behalf of the newly substituted plaintiffs (Valerie Coleman and Fintan Coleman as

legal personal representatives of Peter Clohessy deceased) seeking an order dismissing or striking out the appeal of Ann Clohessy. It

appears that the defendant Patrick Clohessy attended on the occasion. On the 29th of July 2011 the Court ordered that Ann

Clohessy be joined as a notice party of the proceedings and be served with the motion and adjourned the motion until the 14th of

October 2011.

9 On the 14th of October 2011, it appears from the order of the Supreme Court of that date, that counsel appeared on behalf of the

plaintiffs, the defendant (Patrick Clohessy) appeared in person and a Mr Roche appeared as a McKenzie friend on behalf of the notice

party (Ann Clohessy). The order of the Court was that the notice of appeal itself, and the notice of motion brought by the plaintiffs

be stayed “pending the resolution of the civil bill – after which they may be revisited by the parties”. Liberty to apply was also

provided for. It appears that the civil bill referred to in the order was the testamentary proceedings which have not been resolved.

This appeal, that is Supreme Court Appeal No. 54/2011, against the order of Mr Justice Hedigan has accordingly been in abeyance.

10 Unfortunately this has not been an end to the litigation generated by the Clohessy family. As already mentioned, Ann Clohessy

who is now of a very advanced age, was made a ward of court on the 19th of August 2016 and the General Solicitor appointed as her

committee. That order was made in the context of proceedings brought by Patrick Clohessy in respect of her detention in hospital.

Subsequently there has been a proliferation of proceedings and appeals to the Court of Appeal and indeed applications for leave to

appeal to this Court. Leave to appeal was refused in three determinations [2017] IESCDET 97, 98 and 99. However, leave has been

granted in other appeals which are at present before this Court. It is the existence of these appeals which have given rise to the

present application. That is because the General Solicitor, acting in pursuance to the order of the President of the High Court has

sought to bring this limb of the proceedings to an end by simply withdrawing the appeal. The Chief Justice has enquired as to the

existence of any proceedings which reflected upon the wardship order, so as to raise any question as to the entitlement of the

General Solicitor to withdraw the appeal. This is the issue to be determined in this application.

11 The parties exchanged affidavits and the Court held a hearing on Monday the 8th of October. On that occasion Mr Patrick

Clohessy produced a set of proceedings bearing Record No. 2017/6224P between Patrick Clohessy plaintiff and Minister for Health,

Health Service Executive, Catherine White, Tom Tobin, Norma Harnedy General Solicitor for Minors and Wards of Court, Patrice

O’Keeffe Registrar of Wards of Court, Ireland, Aoife Ní Chorcorain, Lyn Oliver, Josie Clare and Tony McNamara defendants, in which he

makes a number of claims against a range of bodies. At para. 53 thereof of the plenary summons, the plaintiff claims “a declaration

that the Lunacy Regulation (Ireland) Act, 1871 as recited in s.9 of the Courts Supplemental Provisions Act, 1961, is inconsistent with

and repugnant to the Constitution.[and] A further declaration that it is incompatible with the European Convention on Human Rights

Act, 2003”. Paragraph 54 seeks “further orders setting aside as invalid, of no legal force, all wards of court orders for the matters of

Ann Clohessy a ward of court rec number WOC8900 and other interim relief”.

12 Mr Patrick Clohessy states that he brought an interlocutory application in respect of those proceedings which was refused. The

appeal against this order is before the Court of Appeal. The proceedings themselves have not been heard. Mr Clohessy now contends

that the claim cannot proceed as a result of further orders made, restraining him from bringing proceedings in relation to the subject

matter of these proceedings. Needless to say, that order in turn is the subject of an appeal.

13 It is very difficult indeed to see what benefit there is from the further pursuit of the appeal in this case. The Circuit Court appeal

has long since been determined by order of Birmingham J. It is also hard to see on what basis it can be contended that Ann Clohessy

was entitled to have herself substituted as plaintiff on the death of her estranged husband, or to enter into the settlement.

Furthermore, as has been pointed out by counsel for the General Solicitor, the order which was sought to be appealed, is an order

made on a Circuit Court appeal and it is indeed doubtful that an appeal can be maintained against such an order. It is entirely

understandable that the Court would be extremely concerned about the proliferation of proceedings, particularly those which are a

continuing drain upon the estate of the late Peter Clohessy, and indeed on such assets if any, of Ann Clohessy. Common sense, if

nothing else, dictates that the core issues in this case should be identified and resolved, rather than an endless proliferation of

hearings, appeals and applications on matters that are at best ancillary to the main dispute. It is unfortunately much easier to

commence proceedings than have them considered and determined, just as it is easier to created a tangle than unravel it. Often

inertia, the expense and effort involved and the demands of other tasks can lead to a litigious stalemate which if allowed to fester

only corrodes respect for the law and the fairness its procedures are meant to promote. Where litigation is a continuing drain on an

estate there can be added injustice Courts should try to ensure prompt pursuit of claims raised and should it appear that they are

groundless, or initiated to distract, delay or frustrate, Courts should so far as possible seek to ensure that the full cost is borne by

the party at fault.

14 Nevertheless, on the issue which this Court was asked to consider, it does appear that there are proceedings which raise an issue,

however remote, which reflects upon the wardship orders in this case, and which it may be asserted have a knock-on effect upon the

capacity of the General Solicitor to withdraw these proceedings. While counsel, on behalf of the General Solicitor and on behalf of

Valerie Coleman and Fintan Coleman, point out that the appeal itself is from an order of the High Court made on the Circuit Court

appeal, and that there are a large number of objections to the prosecution of such an appeal, which may be readily apparent,

nevertheless those issues are not before the Court on this occasion. Of course, it could be said that the General Solicitor could

proceed at the moment on foot of a valid order of the High Court, which itself is not the subject matter of any appeal, and withdraw

these proceedings. In the event that some or other part of the challenge raised by Mr Patrick Clohessy to the wardship jurisdiction, or

its application in this case were to succeed, then it might be possible to argue that the proceedings could be reinstated. However, no

particular benefit is achieved by permitting these proceedings to be withdrawn now, unless that course was to bring a final end to

even this small piece of satellite litigation. Since that is not possible the Court considers it will not advance matters to allow the

appeal to be withdrawn by the General Solicitor pending either the resolution of the testamentary proceedings in the Circuit Court, or

the outcome of either the proceedings raising a challenge, or indeed the appeal to the order restraining the prosecution of such

proceedings. It is however highly undesirable that there should be such a proliferation of proceedings, and accordingly the Court

proposes that these proceedings would be listed for mention together with the extant appeals, in relation to which leave to appeal

has been granted by this Court and which are subject to case management in order that this matter can be revisited in the light of

the matters considered in those cases.